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Law & Language. II. WHAT IS “LAW”? A. Distinguish between “the law” and “a law” and “law” 1. “Law” is most general a. Refers to the sets of rules, etc., that can be enforced with respect to individuals and entities – against their will and without their prior consent

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II. WHAT IS “LAW”?

  • A. Distinguish between “the law” and “a law” and “law”
      • 1. “Law” is most general
        • a. Refers to the sets of rules, etc., that can be enforced with respect to individuals and entities – against their will and
        • without their prior consent
        • b. Generally a subject of study or debate only at philosophical levels
      • 2. “The law” = all of the existing legal rules, in general, that apply to a particular place, event, person – the whole of a law topic
      • 3. “A law” = an identifiable, single part of “the law”
  • a. Most often refers to a statute or regulation adopted by
  • a legislature or government agency
  • b. For more confusion – “A law states the law.”
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B. “Law” for this course

    • 1. Rules that can be enforced by a government against the will of the subject
    • 2. “Government” is the person, group, or agency that can
    • legitimately use physical coercion (violence)
  • C. “The Law” for this course
    • 1. Generally = the law of the U.S. (most often states’ law)
    • 2. “The law” includes the “system” used -- Two major types
        • a. Common Law system
        • b. “Civil” or “Code” Law system
        • 3. “The law of . . . . .” is more limited, e.g. “the law of Texas” only
        • includes part of the law of the United States
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I. LAW and LANGUAGE

    • A. Law is a very language-intensive field/topic
      • 1. Now (at least) all “law” is written – legislatures, agencies, courts
      • 2. Applying the law requires precise understanding
      • 3. Very important, therefore, to be very clear in saying what is meant in a manner that will be obvious years later
    • B. Saying (WRITING) What You Mean – Understanding What is Said
      • Without a lot of context, one always starts with literal meaning
        • 1. Written things have less context than conversation/verbal
  • 2. Things written by long ago by unknown persons in unknown setting have less context than ongoing correspondence between persons who know each other
  • 3. Legal controversies usually involve things written long
  • ago by an unknown writer or writers
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All Things Considered, October 25, 2006

Canada's telecommunications regulator has decided that a . . . comma in a contract concerning telephone poles will allow a company to save an estimated 2 million dollars (Canadian).

The contract between cable company Rogers Communications and telephone company Bell Aliant allowed Rogers to use Bell Aliant's tele-phone poles. Bell Aliant sought to get out of the deal.

Canada's telecommunications regulator said the case hinged on the

. . . second comma in this clause:

"This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party."

Rogers had insisted the contract was good for at least five years; Aliant said the comma denotes that the deal can be terminated at five years -- or before, as long as one year's notice is given.

The ruling commission said that the comma should have been omitted if the contract was meant to last five years in its shortest term.

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Persons reading a language in which they are very fluent (usually their “native” language) make unconscious assumptions about words being read.

See handout.

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I. LEGAL LOGIC

    • A. Syllogism:
      • 1. Major premise (normally a statement of the/a law)
  • 2. Minor premise (normally a statement of fact)
  • 3. Conclusion (logical result of applying the first two [ law to fact ] )
  • The result is not always reasonable
  • EXAMPLE: Assume killing a human being is a capital offense (possible
  • death penalty). Also assume this is subject to the general
  • rule that attempting a crime carries the same penalty as
  • succeeding.
  • Major Premise: Timur is a human being.
  • Minor Premise: Timur attempted to kill Timur.
  • Conclusion: Timur can be given the death penalty.
  • Why does that not make sense?
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B. Analogy:

  • 1. Something is like another thing (at least in some way)
  • a. “Can not compare apples and oranges” Why not?
  • b. Compare? Elephants and Mice?
  • Trees and horses?
  • 2. “Precedent” (in Common Law) is using prior court decisions to
  • determine “the law” for a present case
  • a. To be usable precedent, the prior case must:
  • (1) Have similar facts
  • (2) Have similar legal issues
  • b. Similarity and difference is determined using analogy
  • c. A constant question = how far must the facts or legal
  • issues be generalized before they are analogous?
  • »Or become too general to be useful
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3. When trying to determine if precedent exists

a. Carefully analyze the basis/reasons for the prior decision

– If the key factor in an oranges case was that the item was a fruit, is it precedent for a later apple case?

– If the key factor was the color of the outer layer of the item, is it precedent for an apple case?

4. Things to argue about:

a. What, exactly, was the key factor(s) in the prior decision?

b. Is the analogous factor most significant in the problem, or are there other factors that should have greater weight?

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C. Another use of “precedent” – Establishing & applying a general rule

  • Inference = determining a general rule from a sampling of individual events
    • 1. Find a number of cases dealing with similar facts and legal issues
    • 2. Summarize (generalize) the result of those cases into a single
    • rule that explains/includes all of them
    • 3. Apply that general rule to the problem case, using deductive logic
  • 4. This is more like “scientific” logic – general “laws” of physics are inferred from a number of experimental observations